Sunday, July 02, 2006

Is Congress autonomous?

Sandy Levinson

As some readers know, I am a big fan of Daryl Levinson's article, "Empire-Building Government in Constitutional Law," 118 Harv. L. Rev. 915 (2005), in which he argues that the Madisonian thesis, expressed in Federalist 51, that members of Congress would be assiduous in protecting the "prerogatives" of their institution, is false, for two quite different reasons. The first, a variant of David Mayhew's well-known argument, is that members of Congress are primarily motivated to seek re-election (or, for the even more cynical, well-paying jobs on K St.), not by a concern to protect institutional prerogatives except inasmuch as they contribute to re-election. The second reason is that the rise of the political party, which the Madison of 1788 thought inimical to democracy, makes members of Congress more loyal to their parties than to their institution, especially when their party controls the presidency. This thesis is further elaborated in an article that Levinson has co-authored with Richard Pildes in the current Harvard Law Review, "Separation of Parties, not Powers."

So consider the consequences re the all-too-likely response to Hamdan. As Mark Graber has ably argued, it is far too early to have any confidence about the importance of the case. (Consider Zhou en-Lai's famous comment about its being too early even to pronounce on the ultimatele impact of the French Revolution.) But it is surely possible that the response will be exactly as Mayhew and Levinson would predict: The Republican Party is desperately eager to run one more election on the "terrorism" issue, and the Washington Post article cited by Mark suggests that they will try to make anyone who supports Hamdan--which, after all, says only, at the end of the day, that Congress has not authorized Bush to ignore the Geneva Conventions and existing laws--by refusing to give Bush a blank check to fight the war as he sees fit is, at best, a wimp and, at worst, a collaborator with terrorists. See, e.g., John Boehner's absolutely disgraceful attack on Nancy ("San Francisco liberal") Pelosi and the idiotic claim that she is supporting "special rights" for terrorists (as against the rights set down in existing law). If Republicans could run on the basis of demonstrated accomplishments, perhaps some would resist playing the "terrorism card," but, of course, they cannot, so basic incentives for re-election suggest that Republicans will try to make Hamdan into an albatross around the Democrats' neck. (Query, how many Democrats, themselves desiring re-election, will stand firmly behind Geneva and the Uniform Code of Military Justice? More or fewer than stood firm against the idiocy of the flag-burning amendmeng? And, of course, here the key number may be 60 instead of 67, if we are talking about the possibility of a filibuster against a blank check for Bush.) In addition to re-election pressures, there is also party loyalty, as Bush will play every card at his disposal to keep any independent-minded Republicans in line. John Warner, who is old enough to be beyond any further ambitions, may stand firm. But will Arlen ("all the backbone of a banana') Specter really do so, even though he is probably dying of Hodkins disease? There is nothing in the record of the past two years to give any encouragement on this point.

In any event, the response to Hamdan in Congress may be an interesting natural experiment with regard to whether anyone on Capitol Hill really cares about defending congressional independence against executive overreaching or whether, on the contrary, they will all, Republicans and Democrats alike, behave in accordance with loyalty to their own electoral intersts and their parties' perceived institutional interests.

One final, perhaps unrelated, point: Although I think that Stevens' opinion was admirable in every way, am I the only person who foundn it quite uneloquent, when all is said and done? That is, it seemed to me a wonderfully "lawyerly" opinion as it carefully eviscerated the Administration's arguments. But, in contrast, say, to Hugo Black's First Amendment opinions of the 1950s, which permanently etchned themselves in my then-undergraduate consciousness, or, for that matter, almost any of Scalia's dissents, where the reader always gets a very strong sense of what Scalia believes is a stake with regard to the country or culture outside the courtroom, there is little in Stevens' opinion that stirs the passions or leads one to want to mobilize politically. And, inasmuch as it is basically a "legal process" opinion, focusing on the lack of congressional authorization, it places the ball in Congress's court to stand firm or capitulate to those like David Addington, the subject of a superb--and extremely scary--profile in this week's New Yorker by Jane Mayer, who are, like John Yoo, certainly not remotely persuaded by the Hamdan majority. So perhaps this point isn't unrelated after all: Wouldn't it be wonderful if the opinion contained more quotable language about how basic American values are at stake with regard to the substance of the issues--i.e.. the rights enjoyed even by the (suspected) worst among us--rather than the focus on how existing law hamstrings the Administration in its desires to protect us against terrorists?


That struck me too, but I think that's sort of the point: this was a case about legal basics.

And I have a hunch he will uncork the grand vision in the NEXT detainee case... No one who reads the dissents by Justices Murphy and Rutledge in Yamashita can doubt that Justice Stevens (who clerked for Rutledge) has a pretty good feel for the big picture here. The other day I noticed that Justice Stevens wrote a book about Rutledge back in the 50s... That might be worth looking at if one can find a copy.


It's actually a book chapter:

Philip B. Kurland and Allison Dunham, MR. JUSTICE, University of Chicago Press (Chicago 1956), chapter "Mr. Justice Rutledge" by J. P. Stevens.

And weirdly enough, my local library system has a copy.

In any event, the response to Hamdan in Congress may be an interesting natural experiment with regard to whether anyone on Capitol Hill really cares about defending congressional independence against executive overreaching or whether, on the contrary, they will all, Republicans and Democrats alike, behave in accordance with loyalty to their own electoral intersts and their parties' perceived institutional interests.

I think this experiment has already run: NSA spying and FISA showed us that party loyalty trumps institutional interests or even basic concern for the Constitution. If the fall elections don't change the Congressional leadership, we may be in for what Bruce Ackerman calls a "constitutional moment" and we'll all be living in John Yoo's world.

Wouldn't it be wonderful if the opinion contained more quotable language about how basic American values are at stake with regard to the substance of the issues--i.e.. the rights enjoyed even by the (suspected) worst among us--rather than the focus on how existing law hamstrings the Administration in its desires to protect us against terrorists?

It's frustrating that Democrats -- who have been hammered for years on "values" issues -- have a values issue and can't bring themselves to articulate it eloquently. Does anyone else fantasize a speech like this:

"Our nation rests on fundamental values [cue rising music]. 'We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these rights are life, liberty and the pursuit of happiness.'

America stands for liberty and justice for all. We take that pledge every time we face our nation's flag and say the Pledge of Allegiance. If we violate that pledge, we risk not just our own souls, but the soul of our nation. 'For what will it profit a man if he gains the whole world, and loses his own soul.'

We can win our current struggle, but not if we abandon our pledge, America's pledge. We will prevail by redeeming that pledge, by preserving our values NO. MATTER. WHAT."

Although I think that Stevens' opinion was admirable in every way, am I the only person who foundn it quite uneloquent, when all was said and done?"

Maybe this wasn't a time for eloquence, but for simply getting the job done. Rhetorical home runs draw attention to themselves, and rebutting anything that doesn't work about them might serve, however unfairly, to undermine the opinion as a whole.

And as for tea leaf reading about how Democrats and Congress will blow it: would everyone please stop it. If you care about this, it does no one any good to beat your chest about how pessimistic you can be. We've been handed a necessary victory with Hamdan, it's time to behave like this is our country to lose, not theirs to hijack.

Hear, hear Mr. Nephew. Our side did a good job in the Graham/Levin/Kyl debate, and ended up with a bill that was just not-bad enough to squeak by. The coming legislative battle is going to be another 'all hands on deck' moment: I think there's a majority of the majority in Congress who'd gladly trade the nation's honor for a few seats in the 06 midterms, but there have got to be fewer who'll admit to it.

As to eloquence, Stevens handled the brunt work, Kennedy (and Breyer ... who provided a 'Cliff Notes' version) provided some of the eloquence. Still, there is a point there.

Rasul also was hard going. But, there is enough quotable stuff and a major target, lawyers in the gov't, might appreciate the more verbiose details.

It might be worth noting that Justice Stevens received a Bronze Star for his service in WWII. He served as an intelligence officer. Kenneth Royall, the defense atty in the WWII enemy combatant case (Quirin) later became Sectry of Army and War.

Interestingly, though Ltr Cmdr Swift shined in various appearances, such details do not really come up in the usual media coverage.

"Although I think that Stevens' opinion was admirable in every way, am I the only person who found it quite uneloquent, when all is said and done?"

I noticed that too, and at first also yearned for more stirring language. However, I think Stevens intentionally left out any rhetorical flair or civics lessons because the legal reasoning and result were severe enough repudiation of the central pillars of this Administration's legal (or rather lawless) policies. I know the Justice fairly well, and he is a very generous and magnanimous man. I suspect he did not want to pour any salt in the wounds out of consideration and respect for the Executive. If only the Executive would show due respect for the other branches.

Joe 2 may be correct in his assessment of Stevens's motivation, and there is a sense it which it speaks well for him. On the other hand, he is living in a fantasy world if he believes that the Bush Administration will reciprocate in any meaningful way for the stipulated "gentleness" (at least rhetorically) of his opinion. John Kerry was the last person to make the disastrous calculation that he should lay off intense and personal criticism of Bush and his administration (in the Democratic Convention). Karl Rove will have no hesitation in Swift-boating anyone who supports Hamdan's substance. Stevens was quite willing to wax rhetorical in Bush v. Gore. I think the better explanation is that he had to tone down in order to keep a majority together for the opinion (all but the dealing with whether conspiracy is part of the law of war). It is far easier to be eloquent in concurring or dissenting opinions, as Black's were, than in majority opinions--though see Robert Jackson's opinion in Barnette, which Charles Alan Wright picked as his favorite opinion in part because it is so stirring (even if analytically flawed in some serious ways).

In teaching Hamdi, I have discovered that Clarence Thomas seems to make more headway with students than does the basically mush opinion of O'Connor, just as Scalia's dissent is wonderfully stirring. Robert Post and Reva Siegel recently presented a paper, to be published in the Fordham Law Review, arguing that Scalia is not really speaking to his fellow justices or even other lawyers, but, rather, to the public at large, precisely in order to stir them to action against what he perceives as the mistakes of his colleagues. Not one of the centristliberals seems to have the same kind of understanding of his/her role.

I’ve had that hunch about Scalia’s audience. I have no legal training and I find him easier to read than all but Ginsberg. She’s his superior.

And I don't care what that guy says about the French Revolution. Its story is still a significant treasure in our memory, one of many stories we [d]emocrats need in order to mustar the courage necessary to confront a punitive, overreaching executive.

give it up.

It would be nice to think that the press would be assiduous in protecting the "prerogatives" of their institution, or that the people themselves might be. It would be nice to think that Americans would understand that democracy is an ideology not a "truth" and that as in all ideologies indoctrination is required. It would be nice to think that people would understand that adversarialism rather than social harmony or acquiescence - or pseudoscience (rationalist or naturalist)- are primary forces in republican government.

But it ain't working out that way is it?

Chou en Lai's dismissive remark may yet endure: were the current legislators to remain in office 25 more years, some answers might appear even more urgent, as well, in 2032.
I read the Yoo interview MLederman linked, which closed trenchantly, wistfully, with regret the judiciary had entered the fray in the matter of the mistakes in design of the military commissions. For Mr. Yoo, I thought the sentiment exceptional: given his lonstanding reliance on MartyL's first hyperlinked document in that post, the infamous Bybee expostulation of what constitutes legal treatment of stateless persons disruptive of civil order. As the June 26, 2006 New Yorker article by Jane Mayer highlights, astoundingly, most of the top officials gathering to determine a response in the days following 911 were nonattorneys; though, perhaps this is less telltale of their disproportionate reliance upon Bybee's workgroup's advice in the infamous torture memo than it is revealing of precisely the condition of modern US government perceptively commented upon in this thread, that perhaps the outcome of those strategy sessions post911 was more a byproduct of partisan polity than executive branch turf building.
Though, inexplicably, the Federalist 51 version I have reviewed from the Gutenberg project ascribes to it the dual authorship of Madison, Hamilton, the body of that paper is ponderous, indeed, in discussing the conundrum of how to assure representativeness of the government, and give it actual power to rule, yet, withal, to assure its instinctive power building would be tempered by checks and balances both within each branch and equally among the three branches.
It is somewhat peculiar that the Federalist itself was a part of the fourth estate, and we know the vast politicking required to decide where exactly in the constitution to lodge the protections for free speech and press. There was a nearly ludicrous discussion of the matter of an independent press over the past end of week in a symposium reported transcripwise at this site, wherein a former Reagan administration official begins to declare some reporters should be jailed; even without Zenger to print their moonlight tracts revealing datamining, though I would expect that critic to welcome Hamilton for defense counsel.
I agree with the commenters who wait for the next shoe to drop at the Supreme Court; indeed, Friday the Solicitor General petitioned the DC circuit to hold a postHamdan review of the BoumedieneOdah packet of cases within the month of July 2006.

I believe Rutledge had an incrementalist brand of jurisprudence; I appreciate the pointer to the Harvard Law Review articles by Darryl Levinson alone and with R. Pildes; the latter is one of my favorite electoral law writers currently.

There is a lot going on here, and I defer to the wisdom of our co-discussants. I respect the simplicity of the Stevens opinion last Thursday, as it must be a fairly somber chore to address an over-reaching executive's workgroup when the higherups are non constitutional-lawyers. I only wish some of those in the top leadership were sociologists and anthropologists. In my view, there is a lot to learn from the studies in technology and even electoral politics, as a way to inform decisionmaking in the latest asymmetrical 'war' as viewed from the executive branch. A large difference in the next Scotus opinion well may be the Hamdan-recused Chief Justice's participation in that future judgment. Perhaps CJ Roberts' Rutledgelike instinctual grasp of the business perspective will speak to that specially attuned ear in the administration creatively. Meanwhile I would expect the US attorney general's liaison with the interior minister in some country possibly to produce a quick thinning of the number of detainees by some arrangement to transfer many of them to that country en bloc. Certainly, aside from the plight of detainees, there is ample opportunity for leadership from that foremost nation in the region, one which has long friendship with the West.

Your gratutitous cheap shot at Sen. Specter is a disgrace. You should be ashamed of yourself.

I'm truly not clear why my comment about Sen. Specter is objectionable. It is simply true that he has not stood up in any significant way over the past two years (i.e., since he kept his committee chairmanship by promising to play ball with the Bushies) against the Administration, for all of his posturing. And it is a matter of public record that he is ill with a disease that is often fatal. Generally speaking, one might expect persons in such a position to be particularly concerned about their legacy, including standing up for their deepest beliers. It remains to be seen whether Sen. Specter has any truly deep beliefs that are incongruent with loyal service to the President. If he in fact stands firm, I will be the first to applaud him and recant my reference to his banana-like backbone (an alalogy, incidentally, borrowed from Teddy
Roosevelt's reference to Oliver Wendell Holmes following his refusal to go along with TR's trust-busting reading of the Sherman Act).

sandy levinson

regarding ms. weddington's note that prof. levinson should be ashamed for a "cheap shot" at senator spector, i would refer ms. weddington to her comments to marty lederman's june 30, 2006 post entitled, "hamdan is a big deal regardless of what congress does":

"Everyone on this stie know that if stevens got hit by a bus last february or if another member of the liberals had unexpectedly died or resigned, this case would have come out the other way...

"The liberals hopes rest on an 86 year old cancer survivor and a 73 year old cancer survivor...".

enough with the bogus indignation. how is that any different than what prof. levinson said? let's agree that both of you, at the very least, stepped a bit over the bounds of taste. i would once again ask that we have intelligent discussion on this site without resort to childishness.

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